by Bob Woodward
The case, Evans v. Abney, involved a segregated 100-acre public park in Macon, Georgia. The land had been willed to the city in 1911 by a Georgia segregationist, who had stipulated that it be kept a whites-only park. For a half-century the park was kept segregated, until in the 1966 term, the Supreme Court had ruled that the park must be integrated. The man's heirs subsequently sued to recover the land, saying that the purpose of his will had been violated. The Georgia courts agreed.
With some misgivings, Burger joined a 5-to-2 majority in conference to uphold the Georgia decision. Brennan and Douglas dissented; Marshall did not vote, since he had been involved in the case three years before as Solicitor General.
Brennan hammered away in his dissent, arguing that the closing of a public park was a discriminatory action by the state and the Georgia court. It violated the equal protection guarantees of the Fourteenth Amendment.
Black, writing for the majority, was equally forceful. What the Georgia court had done was not discriminatory. The park was being closed for both blacks and whites alike, he asserted. It was a racially neutral act based on the state court's interpretation of its own racially neutral law on wills. The determination of wills had always been a state question, he argued. If the Court intervened, it would be carving out one more area of federal control. This was a state matter. It was also a question of a person's right to dispose of his property as he wished. Black felt strongly on that subject. He wanted no interference with his wish to have his Court papers destroyed when he died.
Burger agreed that the federal courts should not extend Fourteenth Amendment guarantees to such traditional areas of state control. But he wanted to avoid having his Court support the segregationists. As he frequently did, Burger went to Harlan for help. Harlan was an expert on federalism—the allocation of power between the state and federal governments. Harlan appreciated Burger's intention, but he said he could not find any part of the Constitution that prevented the Georgia court from directing that the land be returned to the heirs. And the federal courts had no power to order it in any case. In a literal sense, Black was right; it was not a discriminatory act.
Burger suggested that perhaps they could find a more limited ground than the Fourteenth Amendment and simply assert that the Georgia decision was "wrong" because the Georgia courts had misapplied the Georgia law. They should have ruled that the donor's basic intent had been to bequeath a park, that while he did want it segregated, he was primarily concerned that there be a park. Therefore, under Georgia law, the Georgia courts should have construed the will to leave the park public and, therefore, integrated.
Politely, Harlan asked on what grounds he based his decision. What part of the Constitution did Burger intend to cite to justify such a ruling?
Burger said he preferred to avoid specifying any grounds.
A federal court, Harlan reminded the Chief, even the Supreme Court, couldn't simply tell a state how to interpret its laws without providing a constitutional reason, whether it be equal protection or some other reason.
"We are the Supreme Court and we can do what we want," Burger replied.
Harlan tried again to point out that what the Chief was proposing amounted to a dramatic expansion of the Court's power to intervene in state matters. The Court, of course, could make statutory interpretations of federal laws passed by Congress. But, to Harlan's knowledge, the Court had never corrected a state court by asserting that its decision was "wrong" unless it conflicted with federal laws or with the Constitution.
There must be some way to decide it narrowly, Burger said.
No, Harlan responded, he could find none.
Burger left, still protesting that the Court had greater latitude to do what it wanted.
Harlan went into his law clerks' office and described the meeting. Harlan had never criticized anyone personally, but now he seemed both a bit bemused and a bit horrified. Burger had spent thirteen years on the District of Columbia Circuit, where there was little exposure to state law, since the District was a federal enclave and Congress passed the local laws. So it was probably an honest mistake. His new colleague had a lot to learn, Harlan indicated. He had hoped that Burger would be a more skillful legal technician. How could someone be a judge and not understand a concept familiar to most third-year law students? Harlan's smile flickered as he repeated Burger's assertion of federal judicial supremacy—The Court can do anything it wants. So much for the Chief's claims that he believed in judicial restraint.
Burger, for his part, was pondering what Harlan and Black had told him. He still didn't like it; the Georgia court decision was wrong. But he gave up. He wrote a memo to Black with copies for the conference.
"Dear Hugo,
"This is a difficult case with a result I do not relish, but the question is one for the states (states, unlike federal agencies and this Court, are not infallible). Seeing it as a state question, I join your opinion."
Hugo Black had been ahead of his time for most of his life. Graduating from the University of Alabama Law School without high school diploma or college degree, he maintained a rigid reading schedule of "great books" to compensate for his lack of formal education. Elected to the Senate in 1926, Black became a powerful Roosevelt ally. A colorful showman in Senate hearing rooms, Black supported Roosevelt down the line and was a controversial and powerful politician when Roosevelt appointed him to the Court in 1937. In three decades on the Court, Black had seen his early dissents become majorities. Black had provided the basis for many of the Warren Court's landmark decisions, and some observers even argued that the "Black Court" would be a more appropriate title.
Still driven by a burning evangelical need to persuade his colleagues of his views, Black worked intensely at the job. But after thirty years on the Court, he no longer felt ahead of the times. He was troubled by the many reports of disruptions in courtrooms across the country. The judiciary —federal, state, even the local police courts like the one on which he had served in Alabama—was the real underwriter of American liberty. Black was fiercely protective of judicial independence and prestige. Yet antiwar and black activists had turned courtrooms into circuses. At the trial of the "Chicago Eight" in 1969, Judge Julius Hoffman was. confronted with verbal and physical threats by defendants who had staged the antiwar protests at the 1968 Democratic National Convention. He had ordered one defendant, Black Panther leader Bobby Seale, shackled and gagged during the trial. In New York, another judge had been threatened repeatedly during pre-trial hearings of thirteen Black Panthers. At one time he was forced to postpone the hearings until the defendants observed court decorum.
In the middle of the term, Black pushed to have the conference grant a hearing in a case (Illinois v. Allen) that dealt with the constitutional limits on judges to control unruly defendants. In the Allen case the judge had expelled the defendant from the courtroom. The case was thirteen years old, without any of the notoriety of the so-called political trials. But it provided the Court with an opportunity to tell trial judges how they could deal with disorderly courtroom behavior without violating the rights of the accused. Black thought that if the Court waited for the political cases to come up before it dealt with the issue, the waters would be muddied by such questions as the Vietnam War and police infiltration of black groups. The Allen case provided an opportunity to make a strong statement without any side issues.
After oral argument and conference, only Douglas had reservations about the Court reaching out to issue a list of constitutionally permissible actions that a judge might take to maintain order in the courtroom. The Chief assigned Black to write an opinion for the seven-member majority.
Black relished the opportunity. The Sixth Amendment guaranteed a defendant the right "to be confronted with the witnesses against him." But, Black wrote, the courts cannot be "bullied, insulted, and humiliated and their orderly progress thwarted and obstructed." Calling courts "palladiums of liberty" and "citadels of justice," Black said there were three things that could be done withou
t violating the Constitution: binding and gagging the disorderly defendant; citing him for contempt; and expelling him until he promised to behave.
Harlan, a believer in decorum everywhere, was so anxious to get Black's opinion announced that he wrote a memo to complain that Douglas was taking too long in writing his separate dissent.
Douglas intended no delay. He prided himself on being the fastest writer on the Court. He often turned out an opinion the day after an assignment; his separate opinions were ready weeks, if not months, before the majority opinions. His clerks often called these "plane-trip specials," because they were written after the Friday conference on an airplane, as Douglas traveled to some speaking engagement. At times he mailed longhand drafts back to the Court, so that they could be printed and ready for revision upon his return. The other Justices all acknowledged Douglas's brilliance and incredible productivity; White called him a "paper factory." Douglas was so prolific that once when former Justice Charles E. Whittaker was unable to draft a majority opinion, Douglas finished his dissent and then wrote Whittaker's majority for him.
But the others also had come to wonder if Douglas's opinions—often disorganized treatises on sociology rather than law—did not sometimes fall victim to his unrelenting pace and curiosity. Declaring "there will be no errors in my opinions," Douglas, just the same, refused to allow his clerks to edit them.
But in the Allen case, Douglas had misgivings about the majority's willingness to issue a broad-policy document that was clearly aimed beyond the case at hand. And for Harlan, who was far slower than he, to complain about delay was particularly galling. Harlan often took months, because he liked to write a Harvard Law Review article on each case, making his opinion gray in style, tone and result. "There is one thing you ought to know," Douglas told his only clerk, "I don't write law review articles like Harlan does."
Unwilling to sacrifice his candor in the interests of fraternity, Douglas fired back a flinty memo saying he would have his opinion ready when he was done and no sooner. He ridiculed Harlan's protest, noting that Harlan was taking months to produce an opinion in a discrimination case (Adickes v. S. H. Kress &Co.).
Douglas circulated his dissent soon after, expressing his irritation that the Court was, in effect, approving the broad use of harsh measures by judges to control defendants in controversial political trials.
The Court's opinion was announced five weeks after oral arguments, nearly a record for speed in such a seemingly routine case. And across the country, lower court judges could be confident that the Court would back their efforts to maintain order in their courtrooms.
It was late one Friday afternoon, and Burger was exhausted. A grueling, day-long conference had just ended. Unlike his colleagues, the Chief couldn't now go home immediately. He had to make sure that the conference actions on the approximately one hundred cert petitions that the Justices considered each week were given to the Court's administrative personnel. Burger hated this chore. It was work proper for a clerk or a secretary, not for a Chief Justice. And it was hard to participate fully in the arguments, lead the discussions, and at the same time keep precise track of the Justices' votes and positions. Since no one other than the Justices was allowed in the conference room, he had to do it alone.
After each Friday conference, Burger would call in a law clerk, a secretary, and the Clerk of the Court. Seated at his ceremonial desk in the conference room, they would go over the results. Three times early in the term, the published orders had incorrectly identified cases that had been accepted for full review. In fact, the petitions had been denied, and so public retractions had had to be made. The press had noticed the errors. The Chief's secretary and his law clerks had tried to help by preparing elaborate briefing books, so that the Chief had only to fill in the blanks with check marks. But it didn't seem to solve the problem. He was still making mistakes.
"Any dumb ass could pick it up," the Chief's secretary once remarked privately.
The Clerk of the Court couldn't understand it, either. Even Chief Justice Warren, notoriously bad at record keeping, learned to keep track of what went on at conference. Burger's chambers solved the problem whenever they were uncertain by calling Brennan's secretary to have her check Brennan's meticulous records.
After the votes had been given to the Clerk of the Court, Burger went into his working office to finish another task, one he enjoyed. The Chief spread a large sheet of plain butcher paper in front of him on the desk. Across the top were listed the names of the Justices. Down the left side were the names-of the cases heard so far that term. The sheet was Burger's most powerful tool in controlling the Court. It represented the work load of each Justice. By tradition, the senior Justice in the majority at conference selected the Justice who was to write the court opinion for the majority. Since the Chief was considered senior to all the others, he made the assignments when he was in the majority. Burger was careful, in his first term, to make sure that he was in the majority most of the time—even if he had to adjust his views. Leadership in the Court could not be exercised from a minority position, he felt.
Since the Chief assigned most of the cases, he was also responsible for keeping the majority-opinion assignments as evenly divided as possible. With only about 120 cases that required full opinions, including several that were unsigned per curiams, the power to select the author—to choose, for example, Harlan or Stewart instead of Brennan or Marshall—was the power to determine the general direction of the opinion. Often, the reasoning was as important as the finding itself. The lower courts would draw on the opinion for guidance as they made their decisions. Burger reasoned that by assigning the cases, he—as Warren had done before him—could control the Court and influence the entire federal judiciary. The process would take years, and it would have to be done a step at a time. But each assignment that he controlled was an important step.
Burger carefully made sure that important cases in criminal law, racial discrimination and free speech were kept away from Douglas, Brennan and Marshall, his ideological "enemies," as he called them. If necessary, the Chief would switch his own vote to retain the assignment power, thus preventing them from writing ground-breaking decisions that expanded the Court's power or extended the application of liberal Warren Court decisions. Instead, he assigned them innocuous cases where their opinions couldn't have much impact.
Of those most likely to share his views, the Chief at first found Byron White the most compatible. White was also the most physically impressive. At six feet two and a trim 190 pounds, he was still like the tough University of Colorado football AU-American who had become the National Football League rookie of the year in 1938. White won a Rhodes scholarship and then entered Yale Law School, where he passed up Law Review to earn money as the highest-paid professional football player of his day. Stewart, a classmate at law school, often saw White in the library in his steel-rimmed glasses, only to read about him in the next day's paper as the game-winning "Whizzer White." To Stewart and his classmates, White was both Clark Kent and Superman.
White clerked a year at the Court for Chief Justice Fred Vinson, and renewed his friendship with freshman Representative John Kennedy, whom he had known in England and later in the South Pacific during World War II. White's fifteen years of law practice in Denver ended when he ran a nationwide Citizens for Kennedy committee during the 1960 presidential campaign. He was rewarded with the post of deputy attorney general as the number two man in Robert Kennedy's Justice Department. A year later, President Kennedy appointed White to the Court, saying that White "had excelled in everything he had attempted."
White was an aggressive Justice, relentlessly pressing his clerks to clarify their own, and thus his own, arguments. Never relaxed, always competitive, White loved to race his clerks to complete the first draft of an opinion, or to interrupt them for a basketball game on the Court's fourth-floor gymnasium, which the clerks called "the highest court in the land."
White's positions were clear and vehement. They
seemed to his colleagues to come directly out of his practical experience in the Justice Department. He was tough on the enforcement of both civil rights and criminal justice. And it was this last hard line that delighted Burger. The press repeatedly pointed to White as a disappointment to the liberals. Poker-faced, sometimes harsh, but confident and capable in the law, White was only fifty-two and likely to be an influence on the Court for years to come. Even when they disagreed on criminal cases, Burger could count on White to write an opinion reasonably close to his own views. Burger put a check under White's name for a criminal-case assignment.
The law clerk working with Burger was puzzled. Burger was in the minority on that one, the clerk reminded him; therefore, the assignment was not his to make.
Burger checked his vote book. No he was not in the minority, he replied.
"But before going to conference you said you would not vote that way," the clerk said.
"I never said such a thing," Burger said crisply.
Moving on to another criminal case, the Chief assigned it to himself. With his vote it would be unanimous, and he wanted to assign himself as many unanimous decisions as possible. That would make it clear that he was leading the Court, and that everyone was falling into line with his opinions, that no one was dissenting or criticizing his work.
Excuse me, Chief, the clerk interrupted once again. How could he have been in the majority for a reversal of that conviction? This time the clerk was certain. The Chief had given his clerks a briefing after conference and had said he was for upholding.